Findings Of Fact The Respondent is a certified building contractor, having been issued license number CB C011621 as an individual contractor. The Petitioner is an agency of the State of Florida, having responsibility and authority to license building contractors and to regulate their licensure status and their standards of practice pursuant to Chapter 489, Florida Statutes. Sometime in December, 1979, the Respondent, doing business as Economy Steel Buildings, Inc., entered into a contract with Digital Machine and Tool Company to construct a steel building for that firm. The Respondent subsequently commenced the construction on land owned by Digital Machine and Tool Company and obtained a permit from Seminole County on December 6, 1979, authorizing the installation of a septic tank. On the face of the permit appeared language containing the specification that the "stub-out" or pipe exiting the septic tank be installed 12 inches above the original grade level. The Respondent observed that language on the face of the building permit and knew and understood its import, as his own testimony reveals. The Respondent subsequently subcontracted the installation of the septic tank to a company known as Al's Septic Tanks, which installed the tank and drain field during the early part of February, 1980. On February 10, 1980, an inspector for the Seminole County Health Department, Don Gross, inspected the septic tank installation and informed the subcontractor and the Respondent that it was not in conformance with Section 10D-6.25(2)(e), Florida Administrative Code, in that the subcontractor had not followed the instructions on the face of the building permit (12 inches above grade level), which were designed to satisfy that Administrative Code section. Sometime between February 10, 1980, and the end of April, 1980, the Respondent received a "Notice of Violation" from the Seminole County Health Department regarding the alleged improper installation of the septic tank. The Respondent admitted that sometime soon after installation of the septic tank he became aware that it did not pass the Seminole County Health Department inspection. The Respondent maintained that he made three attempts to contact the Health Department regarding the Notice of Violation during the month of April, 1980, but he introduced no competent, substantial evidence to show what efforts, if any, he made to correct the installation of the septic tank. There were ongoing disputes between Digital Machine and Tool Company, its representative, Galon Lyell, and the Respondent during this period, and on May 21, 1980, the Respondent was told to stay off the premises and perform no further construction on the site. There arose at about this time a civil dispute between the Respondent and Digital Machine and Tool Company which is outside the scope of this proceeding. In any event, the Respondent did not correct the installation of the septic tank and there is no question that the septic tank was not installed with the "stub-out" pipe 12 inches above the original grade level. Digital Machine and Tool Company later obtained a corrected installation of the septic tank so that it would be "stubbed-out 12 inches above original grade" from a different subcontractor, at its own additional expense, in the amount of $855. From the period of December, 1979, through the completion of the building for Digital Machine and Tool Company, the Respondent was performing contracting under the name of Economy Steel Buildings, Inc. The Respondent admitted that he was fully aware, as of November 19, 1979, that he could not properly perform contracting work under the name, Economy Steel Buildings, Inc., without properly qualifying that company. After a Notice of Violation (Respondent's Exhibit 6) was issued by the Construction Industry Licensing Board through Investigator Hunter, the Respondent was aware that contracting under an unqualified company name was improper. After that Notice of Violation, the Respondent made some attempts to separate his personal contracting business from that of his material supply company, Economy Steel Buildings, Inc. The Respondent, however, accepted payment for contracting and materials from his client, Digital Machine and Tool Company, for the subject project in the name of Economy Steel Buildings, Inc. The Respondent also paid Myron Roseland, a subcontractor, from Economy Steel Buildings, Inc.'s account for work attributable to the Digital Machine and Tool project. Finally, Petitioner's Exhibit 5 establishes that the Respondent attempted to discharge personal liability as a contractor, which attached to him through the Digital Machine and Tool Company project and other projects, by declaring bankruptcy pursuant to Chapter 11 of the Federal Bankruptcy Act as Economy Steel Buildings, Inc., since in that petition he listed numerous subcontractors, including Myron Roseland, who performed work on the Digital Machine and Tool Company job, as creditors of that corporation to be discharged. In summary, during the period of December, 1979, through the completion of the building for Digital Machine and Tool Company, the Respondent was performing contracting work as Economy Steel Buildings, Inc. During that time period, Economy Steel Buildings, Inc., was not properly qualified or registered with the Construction Industry Licensing Board by the Respondent, who was the owner and sole stockholder of Economy Steel Buildings, Inc.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Petitioner finding the Respondent guilty of the violations alleged in Counts III and IV of the Amended Administrative Complaint and imposing an administrative fine of $1,000. The administrative fine should be suspended in part, provided the Respondent provides proof within sixty (60) days from the date thereof that he has made restitution to Digital Machine and Tool Company for the $855 it had to expend to obtain correction of the improper septic tank installation, as well as restitution of monies owed to Mr. Myron Roseland attributable to the Digital Machine and Tool Company project, in which event the Respondent's fine should be reduced to $250. DONE AND ENTERED this 10th day of February, 1983, at Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 James R. Lavigne, Esquire 1971 Lee Road Winter Park, Florida 32789 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The parties stipulated to the following matters which are incorporated in and made a part of the Findings of Fact: The Respondent, Raymon Johnson, holds residential contractor's certificate Number CR C--4461. The Respondent entered into a written agreement with Gary J. Stearman and Michelle Talisman to construct a residence at 2911 NE 9th Street in Gainesville, Florida, for $32,000. The Respondent represented to the owners that the house would have a one-year warranty. On or about December 12, 1979, the Respondent was notified by Al Davis of the City of Gainesville that there were code violations involved with the property at 2911 NE 9th Street, and that based upon these violations a certificate of occupancy could not be issued. On or about June 5, 1980, the Board of Adjustment denied Respondent's appeal of the code violations and instructed Davis to provide Respondent with a list of all the code violations to be corrected before a certificate of occupancy could be issued. As of June 12, 1980, Respondent had not corrected all of the code violations. Johnson was initially advised of three code violations. These were improper wood siding, improperly attached roofing shingles, and improper holes and coverage of holes in the house's foundation. Johnson took steps to properly cover the holes in the foundation, had the subcontractor re-nail the roofing shingles, and controverted the allegation that the siding was improper. Subsequently, Davis refused to approve the roof on the basis that in raising the shingles to add the fourth nail the subcontractor had broken the seal on the self-adhering shingles, irreparably damaging the shingles. Eventually, the roof was completely replaced, although the roofing contractor could not fix the exact date. This was done without cost to the home owners. With regard to the siding, Davis based the determination that the wood was not suitable for siding on the determination that its moisture content exceeded the code requirements, which he in turn based upon the fact that the rough-sawn siding was not grade stamped. Lumber is grade stamped by lumber mills. The right to grade stamp is granted by independent manufacturer's associations to mills which cut and dry lumber to the specifications of such associations. Careful review of the Gainesville Building Code does not reveal any requirement that rough-sawn wood siding which is not structural or load-bearing to be grade stamped. See Section 1700.3 (page 17-2) and Section 1700.4 (page 17-4), Petitioner's Exhibit 3. The code does provide that lumber two inches thick or less will not contain more than 19 percent moisture at the time of permanent incorporation in a building. See Section 1700 6 (page 17-2), Petitioner's Exhibit 3. Johnson initially took samples of the siding from the four sides of the house to a lumber mill which graded lumber and had equipment for establishing moisture content. The results of the test of these samples were reported in a letter from Donald Carswell dated December 22, 1979. See Petitioner's Exhibit 5. Carswell testified at the hearing that he used the same test on Johnson's samples that was used on the lumber which the mill grade stamps. The samples from the house contained from 7 to 14 percent moisture content. Davis refused to accept this letter as proof that the wood was permissible for use as siding because the test showed the current moisture content and not the content as of the date it was installed on the house. Johnson then provided Davis with a letter dated January 21, 1980, from James Griffes, whose mill had cut the wood siding in question. See Respondent's Exhibit 3. Griffes also testified at the hearing that the lumber in question was rough-sawn heart yellow pine and had been stacked for four months prior to sale to Johnson. In Griffes' opinion the lumber was at least of utility grade. He testified that the lumber was dry enough to meet the standards in his opinion. Davis refused to consider the letter as proof of the moisture content because the lumber was not grade stamped. Rough-sawn lumber is not grade stamped, although it is graded, because the stamping operation is a part of the planing procedure. Johnson advised Davis that he was aware of rough-sawn lumber from Griffes' mill having been used in Gainesville. Davis indicated that when it had been used it was under circumstances in which an architect had approved the plans and accepted responsibility for its use. Johnson then provided Davis with a letter, Respondent's Exhibit 2, from H. J. Kelley, Professional Engineer, dated January 22, 1980. In this letter Kelley stated, based upon the two earlier letters, that the siding met the standards of the Southern Standard Building Code, Section 1706.7, for its intended use. Davis refused to accept this as proof of the siding's appropriateness. Johnson appealed Davis' determination to the city's Board of Appeals. This appeals hearing was held June 5, 1980. In April, 1980, the home owners obtained legal counsel, and he wrote Johnson a letter dated April 23, 1980, Petitioner's Exhibit 3. Various meetings were held between the parties during this period. One of these meetings resulted in preparation of a written agreement by the home owners' counsel, Petitioner's Exhibit 4. This agreement calls for replacement of the siding and roof as well as items not found by Davis to be in violation of the code. Johnson did not execute this written agreement. On June 5, 1980, the Board of Appeals held its hearing on Johnson's appeal of Davis' determinations. This appeal apparently limited to interpretation of Sections 1700.3, 1700.5, 1702.8.1 and 1302.5 of the Southern Standard Building Code. While all of these sections were not introduced at hearing, the minutes of that meeting, Petitioner's Exhibit 1, reflect that the Board of Appeals took up matters beyond those raised on appeal. This resulted in the Board of Appeals' direction to Davis to prepare a letter to Johnson setting out all violations of code which would have to be corrected in order for Johnson to obtain a certificate of occupancy The Board of Appeals took notice that it lacked authority to direct that the matters be corrected within a specific time. See Petitioner's Exhibit 1 (page 35). Prior to the June 5, 1980, meeting, the home owners had advised Johnson not to come on the premises or to do further work on the house. They had also commenced a suit against Johnson's contractor's bond. Johnson's attorney, Costello, wrote a letter to the home owners' attorney, Michael Davis, on August 13, 1980, which outlines the events subsequent to the Board of Appeals hearing. See Respondent's Exhibit 5. By letter of June 19, 1980, Costello advised Michael Davis that Johnson agreed to perform all repairs or corrections to comply with the code requirements on the condition that the home owners grant him access to the project and abate their suit. See Respondent's Exhibit 4. Michael Davis wrote Costello on June 30, 1980, advising that the home owners would not allow Johnson to complete the repairs. Meanwhile, the home owners continued their suit against Johnson's bond, in which they eventually received the monies necessary to replace the siding using another contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of October, 1981. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1981. COPIES FURNISHED: Charles T. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Raymon E. Johnson Post Office Box 13981 Gainesville, FL 32604 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue presented for decision herein is whether or not the Petitioner is eligible to sit for the Professional Engineers examination.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. On December 12, 1983, Petitioner, Craig S. Smith, made application to the Florida Board of Professional Engineers to sit for the April, 1984 professional engineering examination. Respondent, Board of Professional Engineers, reviewed Petitioner's application in their meeting on February 19, 1984 and denied his reguest to sit for the April, 1984 examination. The basis for the denial was that Petitioner failed to qualify under the ten-year provision which requires ten years of experience in engineering pursuant to Chapter 471, Florida Statutes, and Rule chapter 21H, Florida Administrative Code. The Board determined that Petitioner did not satisfy the requisite experience in the areas of engineering, responsible charge and engineering design. Specifically, Respondent determined that Petitioner had 82 months of creditable service toward the 120 month requirement and no experience in the area of engineering design. Petitioner's application reveals that he was employed by Florida Testing and Engineering, Inc., 6784 Northwest 17 Avenue, Ft. Lauderdale, Florida from May, 1971 to May, 1973 in the position of a driller crew chief. His professional duties during that period include the following: subsurface investigations for foundation design; securing and classifying subsurface samples in accordance with standard procedures of ASTM and AASHTO; overall responsibility for drilling operations and sampling equipment (standard penetration tests using either split barrel sampler, shelby tube, hollow stem flight auger, steel casing, drilling mud and rock coring, when required). From May, 1973 to January, 1979, Petitioner was employed by the same employer but held the position of laboratory and field engineering technician. His specific job duties include various construction sampling, testing and inspection as follows: ASPHALT asphaltic design mixes conforming to Florida Department of Transportation and FAA criteria; quantitative extraction of bitumen from bitumen paving mixtures; bulk specific gravity of compacted bituminious mixtures; compressive strength of bituminious mixtures; sampling bituminious paving mixtures; sampling bituminious materials; (o) bituminious mixing plant inspections; coating and stripping of bitumen-aggregate; determining degree of particle coating of bituminous-aggregate mixtures: maximum specific gravity of bituminous paving mixtures; specific gravity of solid pitch and asphalt displacement; determining degree of pavement compaction of bituminous paving mixtures; resistance to plastic flow of bituminous mixtures using marshall apparatus; resistance to deformation and cohesion of bituminous mixtures by means of hveem apparatus. CONCRETE compressive strength of cylindrical concrete specimens; making and curing concrete compressive and flexural strength specimens in the field and laboratory; obtaining and testing drilled cores and sawed beams of concrete; flexural strength of concrete (using simple beam with third point loading); slump of Portland cement concrete; weight per cubic foot, yield, and air content (gravimetric) of concrete; (q) sampling fresh concrete; measuring length of drilled concrete cores; air content of freshly mixed concrete by the pressure method; securing, preparing and testing specimens of lightweight insulating concrete; air content of freshly mixed concrete by the volumetric method; checking approximate strength of hardened concrete by the Swiss hammer method; cement content of hardened Portland cement concrete; specific gravity, absorption and voids in hardened concrete; inspection and testing agencies for concrete materials as used in construction. SOILS investigating and sampling soils and rocks for engineering purposes; dry preparation of disturbed soil and soil aggregate samples for test; particle size analysis of soils; determining the liquid limit of soils; determining the plastic limit and plasticity index of soils; determining the field moisture equivalent of soils; moisture-density relations of soils using a 5.5 lb. rammer and a 12 in. drop; specific gravity of soils; moisture-density relations of soil-cement mixture; cement content of soil cement mixture; wet preparation of disturbed soil samples for test; moisture-density relations of soils using a 10 lb. rammer and an 18 in. drop; density of soil in place by the sand-cone method; the California bearing ratio, the line-rock bearing ratio; unconfined compressive strength of cohesive soil; permeability of granular soils (constant head) one-dimensional consolidation properties of soils; repetitive and nonrepetitive static plate load tests of soils and flexible pavement components, for use in evaluation and design of airport and highway pavements; determination of moisture in soils by means of a calcium carbide gas pressure moisture tester; bearing capacity of soil for static load on spread footings; density and moisture content of soil and soil- aggregate in-place by nuclear methods (shallow depth); classification of soils and soil aggregate mixtures for highway construction purposes; determining the Florida bearing ratio test (Florida Department of Transportation) determining the calcium carbonate content for base course materials (Florida Department of Transportation). AGGREGATES sampling stone, slag, gravel, sand, and stone block for use as highway materials; amount of material finer than 0.075 mm sieve in aggregate; unit weight of aggregate; voids in aggregate for concrete; organic impurities in sands for concrete; sieve analysis of fine and coarse aggregates; mechanical analysis of extracted aggregate; sieve analysis of mineral filler; specific gravity and absorption of fine aggregate; specific gravity and absorption of coarse aggregate; resistance to abrasion of small size coarse aggregate by use of the Los Angeles abrasion machine; soundness of aggregate by use of sodium sulfate or magnesium sulfate; clay lumps and friable particles in aggregates; lightweight pieces in aggregate; surface moisture in fine aggregate; reducing field samples of aggregate to testing size; total moisture content of aggregate by drying. MISCELLANEOUS percent of elongation, yield and tensile strength of steel members; compressive strength of hollow load bearing masonry units; inspection tests, including the inspection of pressure grout to insure proper distribution for foundation design; inspection and testing agencies for reinforced concrete culvert, storm drain and sewer pipe as used in construction; inspection and testing amenies for precast and prestress oiling members; From January of 1979 through January of 1982, Respondent held the position of supervisor for the same employer, Florida Testing and Engineering, Inc. During that period, he was in charge or was otherwise overall responsible for field and laboratory operations, prepared engineering reports, analyses, recommendations and design for various construction projects; Fort Lauderdale-Hollywood International Airport-Resurface Requisition No. 14905 and No. 29019 Fort Lauderdale-Hollywood International Airport- ADAP No. 06-12-0025-10 R/W and T/W Improvements and Resurfacing Fort Lauderdale-Hollywood International Airport - ADAP No. 06-12-0025-11 R/W and T/W Improvements and Resurfacing Key West International Airport - ADAP No. 06-12-0037-08 Fort Lauderdale Executive Airport Project No. 7155 City of Fort Lauderdale Parking Garage Project No. 7071 City of Fort Lauderdale 5 Ash Waste Water Treatment Plant Project No. 7642 From January of 1982 to the present time, Respondent formed his own company and holds the position as President of that firm (Eastcoast Testing and Engineering, Inc., 430 Northwest Flagler Drive, Fort Lauderdale, Florida 33301). Respondent is responsible for all phases of construction materials, testing, analysis, inspections, evaluations, quality control and quality assurance. The laboratory personnel and facilities of Eastcoast Testing and Engineering, Inc. has been inspected by the Cement and Concrete Reference Laboratory at the National Bureau of Standards. It is accredited by the Department of Commerce, National Voluntary Laboratory Accreditation Program for selected test methods of freshly mixed field concrete. Eastcoast was awarded the annual testing contract for the City of Fort Lauderdale during its first year of operation. During his tenure as an employee of Florida Testing and Engineering, Inc., Petitioner planned and implemented testing programs for the purpose of developing design criteria; implemented investigation and testing programs for the purpose of determining the cause of failures; prepared reports documenting material test data; and assisted in the preparation of reports for engineering evaluation under the guidance of a professional engineer. (See Petitioner's Exhibit No. 1.) For Petitioner's experience at Florida Testing during the period 1971 to 1973, Respondent determined that "zero time" was credited for that experience based on the Board's determination that Petitioner's work was more a "technician's job than engineering-related job." (Testimony of Board member William B. Bradley, Tr. page 16.) For Petitioner's experience during the period Nay, 1973 to January, 1979, Respondent allotted fifty percent or 34 of the 68 months experience that Petitioner served in that position. The Board determined that the "in-house testing" would have a lot more association with normal engineering procedures than Petitioner's earlier work. (Tr. 17.) The Board considered the technical testing and reporting thereof that took place in the laboratories was more responsible for engineering and, therefore, creditable as opposed to Petitioner's field work. (Tr. 17-18.) Again, for the period 1979 through 1992, Respondent gave Petitioner 59 percent credit for a total of 18 months of the 3 years in question. For the period 1979 through 1982, the Board determined that Petitioner was not essentially doing anything different but, rather, that he was "in charge of people now; he is preparing engineering reports here which I assume Mr. Winterholler signed." For that service, Petitioner was given credit for 18 of those 36 months. From the period of January, 1982 to the present time, the Board gave Petitioner 199 percent credit because, as President of his own firm, he would be more involved and would have more responsibility for the actions of his testing laboratory and, therefore, entitled to full credit for that time. (Testimony of Bradley at Tr. page 21.) Finally, Mr. Bradley determined that be saw no design engineering in the Petitioner's submissions because designing is "actually putting onto paper what's going to be there." (Tr. page 29.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order finding Petitioner eligible to sit for the next regularly scheduled Professional Engineers examination based on his compliance with the ten (10) year requirement of Subsection 471.013(1)(a)3., Florida Statutes. DONE and ORDERED this 30th day of October, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of October, 1984.
The Issue Whether the Respondent's license as a registered building contractor should be disciplined for violating Section 489.129(1)(m), Florida Statutes?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida as a registered building contractor. The Respondent held license number RB 0047309. In June of 1983, the Respondent, doing business as Gamble's Construction Company, contracted with James B. Sampson, Jr., to construct an open steel shelter on Mr. Sampson's property, the Bull Frog Dairy Farm. The contract called for the payment of $42,052.00 for the construction of the shelter. The shelter measures 108 feet by 150 feet. The shelter consists generally of a tin roof sitting on columns. The sides of the shelter are open. The shelter was to be, and is, used as a feed barn for dairy cows. The Respondent purchased the shelter to be constructed on Mr. Sampson's property from Steel Concepts, a steel manufacturing company in Sparks, Georgia. The Respondent had purchased steel structures from Steel Concepts for several years prior to 1983. The Respondent had not, however, purchased or erected a steel structure of the size and design of the shelter to be erected on Mr. Sampson's property. The steel structure purchased by the Respondent for erection on Mr. Sampson's property was designed by Donald Gibbs, then President of Steel Concepts. Mr. Gibbs was not licensed or trained as an engineer, an architect or a contractor. Mr. Gibbs' design of the steel structure purchased by the Respondent for erection on Mr. Sampson's property was never reviewed by a licensed engineer. The Respondent made no effort to ensure that the design of the steel structure purchased for erection on Mr. Sampson's property had been approved by a licensed engineer. Construction of the shelter began in August, 1983, and was completed in September, 1983. The Respondent first designed and constructed the foundation for the shelter. The foundation consisted of a series of concrete-block piers. The concrete-block piers rested on concrete footers (concrete under the ground). The shelter included twenty-eight vertical columns which were each to be attached to one of the concrete block piers by four nuts and anchor bolts. The anchor bolts were embedded into the piers. The Respondent supervised and assisted several employees in constructing the foundation and erecting the steel structure. The Respondent used all the materials furnished to him by Steel Concepts for the shelter. Although cross bracing was provided for, and attached to, the roof of the shelter, no cross-bracing was provided for use in bracing the columns. Holes for the attachment of cross bracing of the vertical columns were provided in the columns. The Respondent should have known that cross-bracing of the vertical columns was necessary. Therefore, the Respondent should have questioned Steel Concepts about the lack of such bracing or the Respondent should have added cross-bracing on the columns. On January 22, 1987, a wind and rain storm struck the Bull Frog Dairy Farm. The next morning, Mr. Sampson discovered that the shelter erected by the Respondent was listing to the east. The structure was approximately twelve to twenty degrees off vertical. Mr. Sampson arranged for emergency repairs to prevent the shelter from collapsing. The Respondent did not make the emergency repairs because it was Friday and the Respondent had released his employees. The Respondent personally helped, however, with the emergency repairs. The damage caused to the shelter by the storm was caused by the lack of cross-bracing on the columns and the failure to properly tighten approximately one-half of the nuts to the anchor bolts connecting the columns to the piers. The Respondent should have insured that the nuts were properly tightened on the anchor bolts holding the columns to the piers. The Respondent's failure to properly supervise the tightening of the anchor bolts constituted a failure to meet acceptable industry standards of supervision. The Respondent's erection of the shelter was not within acceptable industry standards. The Respondent's failure to insure that cross-bracing was provided or to ask Steel Concepts why no bracing was provided, and the Respondent's failure to insure that all the nuts were properly tightened constituted incompetency. Although there had been erosion of the soil around the shelter, the erosion did not contribute to the damage to the shelter. The possibility of erosion should have been taken into account by the Respondent before constructing the footers and piers. This is the first complaint ever filed against the Respondent. The Respondent attempted to resolve the matter with Mr. Sampson.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding that the Respondent violated Section 489.129(1)(m), Florida Statutes. It is further RECOMMENDED that the Department impose a fine of $1,500.00 on the Respondent payable within thirty (30) days from the date of the final order in this case. DONE and ENTERED this 5th day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5391 The parties have submitted proposed findings of fact. Petitioner's Motion to Strike Respondent's Proposed Recommended Order has been granted and no consideration has been given to the Respondent's proposed recommended order. It has been noted below which of the Department's proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those findings of fact proposed by the Department which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 2 and 4. 3 11. 4 5-8. 5 10, 12-13 and 15-16. 6 17-19. 7-10 See 16, 20 and 22-23. These proposed findings of fact are pertinent in determining the weight to be given to the testimony of various witnesses or recite opinions of those witnesses. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, Florida 32060 Fred Seely Executive Director Post Office Box Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times relevant hereto Jonas C. Merricks, Respondent, was licensed by the Construction Industry Licensing Board, Petitioner, as a residential building contractor. In May 1981 Respondent was approached by John Oden regarding a building permit to add a room to the residence of Ms. Betty J. Wilson. Respondent testified he went to see Ms. Wilson to discuss the permit before pulling the permit; however, Ms. Wilson testified she did not see Respondent until after the word started. Regardless of the correct version Respondent pulled the permit for the construction knowing that he was not going to do the work. On May 23, 1981 Ms. Wilson entered into a contract with John Oden to construct an additional room on her residence. This contract was modified on May 26, 1981 to enlarge the room two feet and it is this contract (Exhibit 3), upon which the work was done. The contract made no mention of Respondent or of J & J Building Company which is owned by Respondent. Under the terms of the contract Ms. Wilson was to pay Oden one-third when walls were up, one-third when the roof was on and the final one-third when the job was completed. During the course of the construction Respondent appeared on the site a few times and straightened out existing problems. Ms. Wilson made all of her payments to Oden in accordance with the contract. However, she made the final payment before the work was completed. Her attempts to get Oden to satisfactorily complete the job were unsuccessful and Ms. Wilson complained to the Bureau of Consumer Affairs who referred her complaint to the Construction Industry Licensing Board which investigated and filed the complaint here under consideration. No evidence was submitted that Respondent pulled permits for work done by J & J Building Company. Evidence was presented that J & J Building Company is not licensed by petitioner. Respondent testified that he pulled the permit as a favor to Ms. Wilson and not for Oden, and that he did not know Oden had contracted with Ms. Wilson to do this job. However, Respondent did know that Oden was going to build the addition for Ms. Wilson; and, in his affidavit, Exhibit 5, Respondent acknowledged he had "helped out" Oden several times, that he was paid by Oden for work Respondent did on the premises, that payment for this work was made out to J & J Building Company, and that he supervised the work when he was on the premises.
Findings Of Fact King Royer, Inc., the Petitioner, and the State of Florida, Department of General Services, entered into a contract dated October 15, 1974, for the construction of vocational facilities at the Union Correctional Institution at Raiford, Florida. A copy of the contract agreement is Petitioner's Exhibit No. 3, the plans for the project are Petitioner's Exhibit No. 1, and the specifications for the project are Petitioner's Exhibit No. 2, all admitted into evidence. The contract has been completed and a certificate of contract completion issued by the Department of General Services as reflected in the copy of that certificate which is Respondent's Exhibit No. 18, admitted into evidence. The certificate of contract completion is attended by a letter of explanation from the architectural firm in charge of the project which letter is Respondent's Exhibit No. 19, admitted into evidence. This certificate of contract completion makes reference to change order No. 2, and a copy of change order No. 2 has been admitted into evidence as Petitioner's Exhibit No. 4. This cafe is brought pursuant to Article 8.5 of the contract document, Form of Agreement Between Contractor and Owner for Construction of Buildings, which calls for claims and disputes to be appealed to the Department of General Services for hearing. Those specific claims of appeal are promoted by two documents. The first document is the letter of July 16, 1975, by King Royer as president of the Petitioner corporation. This letter is addressed to the Director of the Department of General Services and is treated as the appeal document. There are five items within this element of the appeal which are listed as follows: "(1) Extension of tire for completion of the project, due to late delivery of the engineered metal building, and delays in completing corrective work of which we were informed only a few days before scheduled completion of the project. Removal of concrete floor which we believed to be 4" thick on the plans, but for which the Architect contends 6" thickness is required. Removal of approximately 2,500 square feet of slab which we contend was substantially in accordance with the contract and adequate for the intended purpose. Temporary bracing for the building, not necessary for any possible loads on such bracing, during removal of the concrete slab. Painting of interior metal structure, not required by the plans and specifications." Paragraphs one and four of this letter/petition will not be considered in substance, for reasons which will be set forth in the section of this recommended order, entitled Conclusions of Law. The second element of the appeal concerned an amendment to the appeal for purposes of considering change order No. 2, which is Petitioner's Exhibit No. 4. This amendment was entered into by stipulation and agreement of counsel for the parties. The stipulation and agreement, indicated that the appeal could consider the elements of the change order to this extent: (1) The element on extension of time due to inclement weather; (2) liquidated damages, only those elements where the liquidated damages pertain to delays associated with the removal of the concrete floor slabs reflected in paragraphs two and three of the original appeal and the painting of interior metal structures as indicated in paragraph five of the original appeal; (3) additional testing shown in the change order; (4) additional services of the structural engineer shown in the change order; and (5) additional services, of the architects and engineering firm, shown in the change order. The first it ruled to be a proper subject for consideration in this appeal, was item two of the July 16, 1975, appeal. As mentioned before this item deals with the removal of a concrete floor which the Petitioner contends was supposed to be 4" thick in accordance with the plans and for which the architect in speaking for the Respondent claims should have been 6" thick to comply with the plans. This area is shown at page 2 of 27 in Petitioner's Exhibit No. 1, which is to plan of the project. The area is found between column line A as a southern boundary and it's northern boundary is a common line extended from the northern wall of the auto mechanics shop. Its eastern boundary runs along column line 5, than proceed through an area approximately 4' 10" wide from column line 5, west to the eastern most wall of classroom 1, and then inset to the eastern wall of the instructor's office No. 1, and then inset to the small closet like area identified as No. 1, these latter dimensions making up the western boundary of the disputed area. In the initial pour of the concrete in that area, the depth of the pour was 4" and was so intended by the Petitioner. The architect of the project discovered that the depth was 4" and not 6" and ordered that this section of the concrete slab be removed. The removal was effected and the cost of that removal and reinstallation is at issue in the appeal. Sheet 5-2, which is at page 14 of 27 of Petitioner's Exhibit No. 1, calls for a 6" concrete slab in the auto mechanics shop and this auto mechanics shop is that area identified on Sheet 2 of 27 of Petitioner's Exhibit No. 1, and includes the disputed area previously described before. Since the initial pour was 4" instead of 6" in the area as described, the Petitioner was not in compliance with the plans and the architect was correct to cause the removal of the initial pour and the substitution of the 6 " pour. Item three in the appeal, set forth on July 16, 1975, questions the requirement for the removal of approximately 2500 square feet of slab which the Petitioner contended was in substantial compliance with the contract and adequate for the intended purpose. This area would be constituted of the remaining aspect of the auto mechanic shop which has not previously been identified in discussing item No. 2. Its southern boundary begins at the intersection of column line A and 1, thence along column line A to the intersection with column line five; go dawn column line 5 from that point to the intersection with the first wall encountered to locate the western boundary; then along that wall east to an intersection of the wall and column line 1 to locate the northern boundary; and then south along column line 1, to the intersection of column line 1 and column line A, to locate the eastern boundary. When the Petitioner initially poured the concrete slab in this area it placed the welded wire fabric by such a method that fabric sunk to the bottom or near bottom of the concrete slab, in violation of Division 3.2C. of the specifications, which call for the welded wire fabric to be placed in the center of the slab. Approximately a week after the floor was poured a Case No. 584 diesel forklift which weighs 10,000 pounds was driven onto the newly poured slab in the auto mechanics area, 100 to 150 times carrying approximately 1500 pounds of structural members on each run. Subsequent to the time that the mesh sunk to the bottom or the near bottom of the concrete floor slab, cracks were discovered in the surface of the floor of the auto mechanics shop and these cracks are determined to be structural cracks. These structural cracks were promoted in part by the location of the mesh in the concrete slab and by the traffic of the fork lift. The location of the mesh may be seen in Petitioner's Exhibit No. 11 which is a photograph of the auto mechanics slab when it was being removed and also in the Respondent's Exhibit No. 9 which is a core sample taken from the auto mechanics area. The nature of the structural cracks is shown by hand drawn lines placed on number 5-2, at page 14 of 27 of Petitioner's Exhibit No. 1, the pencil lines being drawn by Villany Hausner, the structural engineer on the project and the red lines being drawn by Jeff Hoxie, the project architect. This floor slab in the auto mechanics area was also dusted in contravention of Division 3.11A of the specifications which prohibits dusting of the exposed slab. The Petitioner tried to demonstrate that the cracks found on the surface of the concrete slab in the auto mechanics shop were not structural in nature by driving a 38,000 pound concrete truck onto the slab in the auto mechanics area in excess of two months after the pour. This test is found to be inadequate to overcome the conclusion that the cracks were structural in nature in that the test was not properly designed. The Petitioner was offered an opportunity for utilizing a properly designed test at its expense, as prescribed by the architect but the Petitioner did not respond to this offer. There was conflicting evidence about the depth of the initial pour in the area of the 2500 square feet. Respondent's Exhibit No. 1 seems to indicate that a test performed by the Petitioner showed the depth to be substandard but other Exhibits by the Petitioner, namely Petitioner's Exhibits No. 11 and No. 12 show photographs of the concrete slab being torn out indicating that the depth approximated 7". There is also an Exhibit, Respondent's No. 9 which was a core sample taken from the auto mechanics area, but it is not clear what section of the auto mechanics area it was taken from, whether in the 2500 square foot area or in the narrow area 4' X 10" which was mentioned in the point No. 2 of the appeal of July 16, 1975. After reviewing the evidence on the depth of the slab, it is not clear what the true depth was on an average, in the 2500 square foot section. Nonetheless, based on the structural cracks, as explained by the mesh location and to a lesser extent by the driving of the fork lift truck onto the slab, the initial pour of to 2500 square feet was not in compliance with the contract and tie architect was correct in having the slab removed when the Petitioner failed to respond to his offer to have the slab tested. Item No. 5 in the July 16, 1975 appeal pertains to the painting of the interior metal structures and the Petitioner claims that these metal structures are not required by the plans and specifications to be painted. The Petitioner promotes his argument by reference to Division No. 9 of the specifications, particularly 3.7A of Section 9F, which is found on page 9F-8. This part, 3.7A says, "do not paint . . . pre-finished item as specified under Division 13- special construction." Therefore, it is the Petitioner's contention that any item found in Division 13 should not be painted. However, Division 13 in its Section 13B, 3.1C found at page 13B-2, says, "give one shop coat of paint as specified herein to all steel surfaces . . ." This statement is further supported by Division 9, Section 9F, 3.6B(3) at page 9F-7, which says that ferrous metals, including shop painted items will have one coat of rust inhibiting primer and one coat of interior gloss oil house paint. Therefore, the reference 3.7A in Section 9-F of Division 9 does not exclude all so called pre-finished items as specified under Division 13 from painting and the architect was correct in insisting that all interior metal structures which were not in fact pre-finished be given a shop coat, one coat of rust inhibiting primer, and one coat interior gloss oil house paint, as necessary. The second aspect of the appeal concerns change order No. 2. The parties agreed that the 20 day extension of time due to inclement weather should be awarded to the Petitioner at $50 a day for a total amount of $1,000. The second item of the change order concerning liquidated damages in the amount of $1,800 is sustained in view of the fact that only those items pertaining to the removal of the floor slab and painting of the structural members could be considered in addressing the liquidated damages, because of the prior stipulation. Therefore, the architect being found correct in his actions, the liquidated damages should stand. Items 3-5 in the change order concerning additional testing, additional services of the structural engineer and additional services of the architect and engineering firm are proper cost items in view of the problems associated with the floor slab and the appeal of their assessment should be rejected.
Recommendation It is recommended that those items found in the July 16, 1975 letter of appeal offered by the Petitioner not be allowed. It is further recommended that the matters as set forth in the amendment to the petition as found in change order No. 2 be allowed only to the extent of an award of $1,000 for extension of time due to inclement the technique considered acceptable far reimbursement of the amount of $1,000, regardless of the decision on the other matters of the appeal. DONE and ENTERED this 12th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John A. Barley, Esquire Assistant Attorney General Room 115, Larson Building Tallahassee, Florida 32304 John F. Roscow, III, Esquire Post Office Drawer C Gainesville, Florida 32602 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Preliminary matters At all times material hereto, Respondent, Juan Rodriguez, was licensed by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), as a certified general contractor, having been issued license number CG C005171. Respondent was licensed as an individual and not as the qualifying agent of any corporation or other business organization. At all times material hereto, Henry Pena was the sole officer and director of U.S.A. Henry Roofing Corp., a Florida corporation. Neither Henry Pena nor U.S.A. Henry Roofing Corp. (hereinafter jointly referred to as "Pena"), were registered, certified, or otherwise qualified under the provisions of Chapter 489, Florida Statutes, to engage in contracting in the State of Florida. Respondent was clearly aware of Pena's lack of licensure.1 The Zapata job Pertinent to this case, Oscar and Consuelo Zapata owned a one-story commercial building located at 59 Beacom Boulevard, Miami, Florida. On August 1, 1996,2 Mr. Pena, on behalf of U.S.A. Henry Roofing Corp., and Mr. Zapata entered into an agreement whereby U.S.A. Henry Roofing Corp. would replace the roof on the building in exchange for an agreed price of $18,200. A first payment of $8,000 was to be paid after the first inspection, and the balance of $10,200 was to be paid following the final inspection. Later in the month of August, Mr. Pena presented a building and zoning permit application, as well as a request for permit, to Mr. Zapata (as owner of the property) for signature. (Petitioner's Exhibit 8.) Following Mr. Zapata's signing, Mr. Pena delivered the forms to Respondent who signed as the contractor. Thereafter, on or about September 3, 1996, Respondent submitted the forms to the City of Miami to obtain a building permit for the re-roofing job. Respondent was not then, nor was he ever, under contract to make improvements to the Zapata property, and his sole involvement was to obtain a permit so Pena could proceed with the job. The permit was issued on or about September 5, 1996.3 On September 17, 1996, Pena began work on the roof, and ceased work the same day when the roof collapsed.4 With the discovery that Pena was not licensed or insured, Mr. Zapata ultimately contracted with another company (that was licensed) to re-roof the building for $16,000. That contract was duly fulfilled, and the re-roofing of the Zapata building was accomplished (notwithstanding the roof collapse) without financial loss to the Zapatas.5 Respondent's lapse of insurance coverage Respondent's liability and property damage insurance policy was terminated June 25, 1996, and was not reinstated until September 19, 1996. Respondent does not dispute the lapse in insurance coverage. (Petitioner's Exhibits 6 and 10, and Transcript, at pages 76-77, and 80-81.) The costs of investigation and prosecution At hearing, the Department offered proof, without objection, that its costs of investigation and prosecution, excluding costs associated with any attorney's time, totalled $306.09, as of January 27, 1999. (Petitioner's Exhibit 7.) Previous disciplinary action On January 18, 1996, the Department entered a final order which found the Respondent guilty of the violations set forth in a two-count Administrative Complaint issued March 25, 1993. (Petitioner's Exhibit 1.) In that complaint, the Department charged (in Count I) that Respondent violated the provisions of Subsection 489.129(1)(e), Florida Statutes, "by performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the cerfificateholder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered," and (in Count II) that Respondent violated the provisions of Subsection 489.129(1)(m), Florida Statutes, "by being found guilty of fraud, deceit, or of gross negligence, incompetency, or misconduct in the practice of contracting." Such charges were premised on a renovation contract Respondent held wherein he "subcontracted Nelson Echeverria [who was not a state licensed electrical contractor] to perform electrical work at customer's home for approximately $4,500.00." The final order found Respondent guilty of the charges, and imposed an administrative fine of $1,500 and costs of $1,433.03, to be paid within 30 days. On March 8, 1996, Respondent's license was suspended for failure to satisfy the penalty imposed by the final order; however, the penalty was then apparently satisfied and on June 19, 1996, the suspension was lifted and Respondent's license was reinstated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violations alleged in Counts I through III of the Administrative Complaint and imposing, as a penalty for such violations, an administrative fine in the sum of $5,000; assessing costs of investigation and prosecution in the sum of $306.09; and, suspending Respondent's licensure for a period of one year, followed by a two-year term of probation subject to such reasonable terms and conditions as the Construction Industry Licensing Board may impose. DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1999.
